Kerala

Idukki

CC/81/2020

Swathy Krishna B - Complainant(s)

Versus

Veliyattu Motors - Opp.Party(s)

23 Nov 2022

ORDER

 

DATE OF FILING : 18/06/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 23^rd day of November 2022

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.81/2020

Between

Complainant                            :   Swathy Krishna B, W/o Shiju,

                                                     Assistant Manager, Union Bank of India,

                                                     Adimali Branch, Permanently Residing at

                                                     Vellappallil House, Mallappally,

                                                      Keezhvaipur P.O., Pathanamthitta.

                                                     (By Adv.Pratheesh Prabha)

                                                           And

Opposite Party                :   1 . The Manager/Proprietor,

                                                 Veliyathu Motors, Authorized Dealer,

                                                 Building No.560C,School Kavala, Kattappana.

                                            2 . The Proprietor,

                                                 Veliyathu Motors, Muvattupuzha Road,

                                                 Thodupuzha.

                                            3 . Jijo Joseph, Sales Executive,

                                                 Veliyathu Motors, Building No.560 C,

                                                  School Kavala, Kattappana.

                                                  (Ops 1 to 3 by Adv.C.K.Babu)

                                             4 . The Royal Enfield, No.381,

                                                  Thiruvattiyar High Road, Anjugom Nagar Chennai,

                                                   Represented by its Chairman and Managing Director.

 

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant’s case is briefly discussed hereunder:-

 

1 . Complainant is an Assistant Manager of Union Bank of India, Adimali Branch.  First opposite party is the Manager of the Kattappana Branch of Veliyath Motors.   First  and  second  opposite  parties  are  the dealers of the

 

(Cont.....2)

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Bullet Motorcycle manufactured by the 4^th opposite party.  Second opposite party is the head office of the first opposite party.  Third opposite party is the sales executive of the first and second opposite parties.

 

2 . The complainant was approached by the sales executive of the first opposite party on 08/03/2020 and canvassed the business.  Since the BS 6 compliance of the pollution norms for the motor vehicle is announced to be implemented by 1^st April 2020, third opposite party told the complainant that a Bullet 350 ESX is ready available with them and if the complainant pays Rs.1,54,484/-.  Convinced by the offer given by the third opposite party, the complainant gave Rs.10,000/- as advance on 08/03/2020 and booked a Bullet 350 ES X bike.  At the time of tacking the order, third opposite party assured the delivery of the vehicle on full payment.

 

3 . Believing the assurance of third opposite party, complainant arranged a loan from the complainant’s bank and paid the entire amount on 18/03/2020.  Complainant while giving the full payment first and third opposite parties assured the delivery of the vehicle on the next day.  That was the offer given by third opposite party before paying the full amount, complainant also contacted first opposite party and first opposite party also assured the delivery of the vehicle.

 

4 . On 20/03/2020, when the complainant enquired about the delivery of the vehicle, first opposite party, could not give a clear answer.  Instead of delivering the booked model, first opposite party asked the complainant to take a BS 6 Model.  Hence on 23/03/2020 the complainant caused to issue a lawyers notice demanding delivery of the vehicle before 31/03/2020 that was the stipulated last of date for registration of BS 4 model vehicle.  However in spite of the receipt of the lawyer’s notice, first opposite party did not deliver the vehicle.

 

5 . First, second and third opposite parties fully knowing that they could not deliver Bullet 350 ESX Model vehicle, deceitfully obtained the full payment for the Bullet 350 ESX model and cheated the complainant.  The afore said

 

(Cont.....3)

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action of the opposite parties 1 to 3 are unfair trade practices and deficiency in service.  Hence the opposite parties 1 to 3 may be asked to refund the money received with Rs.1 Lakhs as compensation.  The complainant is also entitled for the cost.

 

Hence complainant has prayed the following reliefs.

 

1.  Opposite parties 1 to 3 may be directed to deliver the vehicle  before 31^st June or in the alternate refund Rs.1,54,484/- with 14% interest from 18/03/2020 to till the date of repayment.

 

2.  Opposite parties1 to 4  may be directed to pay Rs.1,00,000/- as compensation for the pain and mental agony of  complainant.

 

3. Opposite parties may be directed to pay Rs.5000/- as cost of complaint.

 

Upon notice from the Commission, opposite parties 1 to 3 have appeared and filed written version. 4^th opposite party has not appeared.

 

Contentions of opposite parties 1 to 3 are briefly discussed hereunder.

 

Complaint is not maintainable either under law or on facts.  According to opposite parties, true facts of the case are that complainant approached first opposite party on 08/03/2020 and made enquires with regard to BS4 Bullet ES.  First opposite party gave sufficient information with regard to the above type of bike and B6 model bikes.  Complainant was satisfied with BS4 bike.  So he booked one BS4 model bike by paying Rs.10000/- subject to the terms and conditions of the first opposite party.  At the time of booking there was only a limited stock of BS4 bikes.  So first opposite party cautioned complainant that first opposite party will register/deliver the bike only after conformation of receipt of payment.  It was also discussed that the complainant has liberty to revise his model from B4 to B6 in case of an afterthought.  Agreeing  the  above  terms  complainant  went  back from the

 

(Cont.....4)

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office of first opposite party.  In spite of repeated requests the complainant did not care to effect the balance payment.  Since there was no proper response from complainant, first opposite party sold out their last bike on 18/03/2020 in the morning.  In the afternoon at 4.30 PM, the complainant transferred Rs.144484 to first opposite party’s bank account.  Thereafter complainant and first opposite party had few discussions but first opposite party was helpless since the entire stock were sold out even from the surrounding branches and the manufacturer had stopped production.  So on 21/03/2020 an e-mail was sent to the complainant requesting him to revise the quotation.  But the complainant on that day sent a reply e-mail stating that he cannot revise the order.  Hence on 23/03/2020 first opposite party further replied through e-mail stating all details and offered repayment of entire money.

 

First opposite party cannot wait for a customer indefinitely.  In this case, first opposite party has to sell out and register the last bike at RTO before 30/03/2020, if not the customer may not be able to register the vehicle for ever due to enactment of law and Hon’ble Supreme Court order.

 

There is no deficiency or defect on the part of this opposite party in this case.  The cunning idea of this complainant is to make unlawful gain from this petition.  This petition is experimental.  The opposite parties 1 to 3 are dragged on for an unnecessary litigation.  Hence the complaint may be dismissed with cost.

 

After filing written version, case was posted for evidence.  Complainant has filed proof affidavit along with documents.  Ext.P1 to Ext.P10 were marked.  All opposite parties were absent and not represented.  Hence, complainant was not cross examined.  We have heard the counsel for complainant and taken the case for orders.  Now, the points which arise for consideration are

 

 

 

(Cont.....5)

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1. Whether there is any deficiency in service on the part of opposite parties?

 

2. If so, what are the reliefs entitled to complainant?

 

The Points are considered together

 

We have perused the proof affidavit and documents.  Complainant had booked ‘Bullet -350 ESX for Rs.1,54,484/- from opposite parties on 08/03/2020.  It is evident as per Ext.P2., order booking amount of Rs.10,000/- was remitted on the same day itself as per Ext.P1.  Thereafter, complainant had transferred Rs.1,44,484/- as balance amount.  It is admitted by opposite parties in their written version that complainant had totally transferred Rs.1,54,484/- to opposite parties  on 18/03/2020.  According to complainant, he had booked Bullet 350 ESX vehicle by receiving the assurance of opposite parties for delivery of the said vehicle itself on full payment.  As per the assurance from opposite parties, complainant transferred full amount after 10 days from the date of booking order ie, on 18/03/2020.  But according to opposite parties, they have sold the last BS4 vehicle which was having in their custody to another person on 18/03/2020 in the morning itself and complainant transferred Rs.1,44,484/- as balance amount to opposite party’s bank account only in afternoon at 4.30 pm.  So opposite parties didn’t deliver the said ordered vehicle to complainant.  But, no evidence tendered by opposite parties to prove that they have sold the last BS4 vehicle on 18/03/2020 in the morning.  Whereas, opposite parties didn’t inform to complainant that at the time of booking there was only limited stock of BS4 vehicles in their shop.  Despite the knowledge about the stock of the alleged vehicle is not available in their custody, opposite parties have received the booking order from complainant.

 

 We are of the opinion that opposite parties have responsibility to inform complainant that assurance of the delivery of the said vehicle before receiving the full payment from complainant.  On perusal of Ext.P2 ie, order

 

(Cont.....6)

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booking form, it is seen that waiting period of the booked vehicle, tentative and delivery date was not mentioned therein that document.  Therefore, it is understood that opposite parties was not sure whether the delivery of the said BS4 vehicle is possible to complainant or not.  This is unfair trade practice.  Because, after receiving the booking order of customer’s choice vehicle, opposite parties have tried to sell another model vehicle with price charges to complainant.  If they received the booking order along with full payment, they have to be responsible for delivering the booked vehicle.  Opposite parties have given assurance to complainant that the delivery of the said vehicle is possible.  It is admitted in the written version is that opposite parties have sold out their last vehicle on 18/03/2020 in the morning.  We are of the view that, after selling their last vehicle in the morning, they had to  inform complainant at the same time that the booked vehicle is not available in their custody.  Here, after the full amount transferred on 18/03/2020, complainant was only informed that the BS4 Bike which she had booked is not available there.  Moreover, complainant had availed a loan of Rs.1 Lakh for purchasing the above said Bike from Union  Bank of India, Adimaly Branch itself, where she is working as Assistant Manager.  It is proved as per Ext.P7 that One Lakh Rupees was loan disbursement debit to complainant’s account and it was withdrawn on 18/03/2020.  Therefore, complainant had to be repay the loan amount along with interest.  This  happened due to the acts of these opposite parties.  Hence, we are also of the view that there is deficiency in service on the part of opposite parties.   Regarding the loan amount, there is no proof that how much interest is to be paid by complainant into the loan account. Opposite parties have produced DD in the name of complainant for Rs.1,54,484/- on 06/07/2022.  Counsel for complainant has taken notice of deposit also.  Hence no directions for refund are necessary.  But opposite parties shall be liable to pay interest for the amount @ 12% from 18/03/2020 till 06/07/2022.  Hence, it cannot be allowed.   Opposite parties have not tendered any evidence against the allegation in complaint.  Therefore, we are of the considered view is that complainant is also entitled to get compensation from opposite parties.

 

 

 (Cont.....7)

 

-7-

 

As a result, complaint is allowed in part as follows.

 

a ) . Opposite parties are directed to pay interest on  Rs.1,54,484/- to complainant @ 12% from 18/03/2020 till 06/07/2022.

 

b) . Opposite parties are directed to pay Rs.25,000/- as compensation and Rs.5000/- as cost of litigation to complainant within 45 days from the date of  receipt of this order, failing which the amount except cost of litigation shall carry 12% interest from the date of order till its realisation.

 

Extra copies to be taken back by parties without delay.

 

Pronounced by this Commission on this the 23^rd day of November, 2022.

 

                                                                   Sd/-

                                                              SMT.ASAMOL P., MEMBER

                                                                              Sd/-

                                                 SRI.C.SURESHKUMAR, PRESIDENT

                                                                         Sd/-

                                                     SRI.AMPADY K.S., MEMBER

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

(Cont.....8)

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APPENDIX

 

Depositions :

On the side of the Complainant :

Swathi Krishna B.

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 –Copy of Receipt dated 08/03/2020

Ext.P2 – Copy of order booking form dated 08/03/2020

Ext.P3 – Copy of Quotation/Proforma invoice dated 08/03/2020

Ext.P4 – Gmail messages- complaint against your dealer Veliyathu Motors  dated 18/05/2020

Ext.P5 – Mail messages dated 21/03/2020

Ext.P6 – message from Royal Enfield Support to complainant dated 24/05/2020

Ext.P7 – Copy of Account Statement dated 17/11/2021

Ext.P8 – Copy of lawyer’s notice to  opposite party dated 23/03/2020

Ext.P9 – Copy of format of letter to dealer for noting of bank charge with RTA(Along with form 20) dated 18/03/2020.

Ext.P10 – Copy of group call details with Veliyathu Motors, Kattappana MD, Manager and ASM.

On the side of the Opposite Party :

Nil         

                                                                             

                                                                                               Forwarded by Order

 

 

                                                                                          ASSISTANT REGISTRAR